I still believe that Donald J. Trump will be inaugurated for a second term as President of the United States of America. Without casting aspersions or calling into question the veracity of the election results as they presently stand, those for and against this current president deserve to be told that there remains a constitutional path to victory. As the token pro-Trump pundit at The Citizen, it is my pleasure to explain these possible scenarios to the best of my abilities.
There is ongoing litigation in several states, by Rudy Guiliani and Jenna Ellis of Trump’s legal team, as well as the independent Sydney Powell regarding the integrity of the ballots cast. I will not speculate as to the veracity of these claims in this space. However, we must understand that not only is the American legal system different from ours, but these cases in particular need only establish a doubt, regardless of how reasonable, in the minds of either judges or legislators.
At that moment, the certification of a state’s popular vote may be stopped, by court order or a legislature's refusal to certify. From there, an audit of the ballots could proceed, with the new results certified. While this would cost both time and money, it’s a far more likely action than any “re-vote” where all ballots are tossed and a new election called, which would be without a single precedent in American history at the state level for president. Still, a full audit is improbable.
What is more feasible is that either a court will tell a state to recall Article Two of the US Constitution, or a state legislature will take the initiative to invoke this law itself, and determine its own electors. The electors, who are charged with casting each states’ Electoral College votes, will then be instructed by the state legislature which way they are to vote, which may or may not be in accordance with the popular vote. While bizarre, this would be an entirely valid, legal move.
Interestingly, a legislature, even under the direct order of the Supreme Court to determine its own electors, might withhold its votes from the Electoral College, sending no one. Essentially, this would be abstaining. But this comes with a twist: if enough states choose not to vote, then it becomes impossible for either President Donald J. Trump, or former Vice President Joe Biden to achieve a majority in the EC. The American Constitution has a provision for this possibility.
In the event that neither candidate achieves a majority of EC votes, the issue passes to the newly elected Congress. The House of Representatives elects the President and the Senate elects the Vice President. It must be clarified that in the House, state delegations vote en bloc - after the majority of members from that state decide whom they support, the state casts a single vote for one of the candidates for President. The Senators each vote individually for a new VP.
Now let’s combine this complex constitutional theory with political realities on the ground while still not commenting on the integrity of the election. A majority of the swing-states have a Republican legislature. Scenario one, re-vote or full audit, is both too bombastic and beyond the time currently available. But scenario two, directing electors, is both constitutional as well as a far more easy path. If enough states tell their electors to vote Trump, that’s game, set, match.
But conservatives dislike ignoring popular votes and dictating results. Between states refusing to certify or holding back their electors, let alone how Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas might intervene as the conservative majority, there is a real chance that neither candidate will achieve a majority of electoral votes. This would allow the states to say democracy will still be honoured, as a contingent election in the Congress would follow.
Former Vice President Joe Biden, as it currently stands, received 80 million votes. But down ballot, Democrats lost in the House and failed to gain the Senate. In a contingent election, the state delegations will be majority Republican.
Maybe Trump won’t need to concede after all.